Tag: Delay Analysis

Delay analysis

In the previous post we examined the key elements of a successful claim and established 4 main requirements, these being:

• Cause
• Effect
• Entitlement
• Substantiation

Additionally we examined the role of the Programme, its function and how it is used in assessing delays.

In effect we can say the following about the Contract (Baseline) Programme, it is:

• The intentions of the Parties at the time of contract
• Shows the intended time and sequence of how the works are intended to progress
• Shows a clear critical path to completion
• Shows dates when the Employer’s input is required, linked to the critical path

As the Programme should be updated periodically in a claim situation the Programme will be:

• The Yardstick against which to measure the effect of delays
• Should be based on the works included in the contract at the time the contract was entered into.
• Should be revised to take into account Extensions of Time (EoT) or re-sequencing of the works.

The Principles of Delay Analysis

It must be borne in mind that a delay does not automatically lead to an EoT and generally “float” which is shown in the programme will be critical, particularly around who “owns” the float.

On most projects the project owns the float and this float will be used up first, in the event of any delays. Only after the float has been used up can the completion date be affected by any subsequent delays. It must also be remembered that a delay may occur that is not on the critical path of the project works.

When a delay takes place the first activity that should be undertaken is a delay analysis, this is to establish the effect of the delay event. For the Contractor or Sub-Contractor to establish an entitlement to an EoT, it is necessary to link the cause with the effect, in other words to establish that an Employer caused delay has actually affected the completion date.

There are two commonly used delay analysis, these being:

• Impacted As-Planned Delay Analysis
• Time Impact Analysis

We will now investigate both.

Impacted As-Planned Delay Analysis

This is the most commonly used delay analysis and is particularly useful where no contemporaneous records are available or are inconclusive and incomplete to demonstrate a delay. Generally employer cause delays are added to the Baseline Programme (See Typical Baseline Programme with float below) and the effect of this delay on the project Completion Date is assessed. A short coming of this delay analysis is that it is unable to identify concurrency, sequencing, mitigation or acceleration.

13.1 Baseline Programme

Under Impacted As-Planned Delay Analysis the delays should be impacted in a chronological order and the delays effect on the Completion Date. It is possible that a delay could crystallise that is not on the critical path of the programme, but it should be included as subsequent actions could result in this delay having an impact at a later stage.

In very general terms if the delay, once its impact has been assessed and included on the updated Baseline Programme does not extend the time required for completion, then the analysis demonstrates that an EoT is not warranted. However if the analysis demonstrates that the Completion Date has moved out into the future, than an EoT is warranted. (See Typical Impact As Planned Programme which has 4 delay events included)

13.2 Impact As Planned x

Again in general terms if the Contractor completes his works earlier than the updated Baseline Programme (assuming there are no further delays) then this demonstrates that the Contractor has mitigated some of the delays. However if the delay has been properly analysed and its impact included in the updated Baseline Programme and the Contractor completes later than this updated programme, this demonstrates contractor caused delays which could leave the Contractor facing Liquidated and Ascertained Damages (LAD’s).

Time Impact Analysis

Time Impact Analysis is a recommended and accepted practice to be utilised for delay analysis. For Time Impact Analysis to be undertaken it is key that the Baseline Programme is updated on a regular and consistent basis to that when a delay event crystallises this can be analysed promptly and consecutively so that its impact can be analysed.

The Baseline Programme (as updated from time to time) should be brought fully up to date to the point immediately prior to the delay event taking place. This delay should then be evaluated and its impact inserted into the programme. (See Time Impact Analysis Programme which at the period update showed a 3 day delay and its impact analysed)

13.3 Time Impact Analysis Continue reading “Delay analysis”


Extension of Time

There are a number of claims that will be made under a contract, yet perhaps the one that is most often needed is an Extension of Time (EoT) to complete the works that have been contracted.

Amazingly despite these types of claims often being relatively straight forward they often fail because the party making the claim fails to adequately demonstrate their entitlement in the submission.

When drafting an EoT there are 8 key elements that need to be included, these being:

• The claim event

• Liability for the claim event

• Contractual compliance

• Contractual entitlement

• Statement of claim

• Substantiation

• Cause & Effect

• Delay analysis

We will now examine each of these main headings in a little detail

The claim event

This is exactly what the title says it is, state the event that has lead to the claim e.g. weather event and then provide the circumstances that lead to the event. This element should be short and concise and acts as an effective Executive Summary of what is to follow, where you detail the claim in greater detail.

Liability for the claim event

In outlining “The claim event” you are setting out what has caused the claim to be formulated and submitted. In this section you need to demonstrate liability lies with another or the other party to the contract and you want to determine liability for the event.

If the claim is by a Sub Contractor to a Main Contractor the possibility exists that the Main Contractor will have a similar right under the Main Contract with the Employer, particularly around weather events or force majeure. These types of events will usually entitle the party bringing the claim to an EoT, but this will obviously be dependent on the specific form of contract and its provisions.

In the Joint Contract Tribunal (JCT) Minor Works Contract grounds for an EoT are dealt with at Clause 2.7. In other forms such as the New Engineering Contract (NEC) often the claim will be dealt with as a Compensation Event.

Contractual compliance

Generally the Contractor or Sub Contractor will be required under the terms of the contract to submit notice(s) with detailed particulars, particularly in relation to an EoT. Where the time frame is silent in the contract then it will be within a reasonable time period.

Of course what is reasonable?

This is why it is better to define periods during the contract negotiation for the protection of all parties.

By way of an example in the International Federation of Consulting Engineers (FIDIC) form of contract at Clause 44.2 states:

44.2  Provided the engineer is not bound to make any determination unless the contractor has

(a) Within 28 days after such an event has arisen, notified the engineer with a copy to the  employer and 

(b) Within 28 days, or such reasonable time as may be agreed by the engineer after such notification submitted to the engineer detailed particulars of any extension of time to which he may consider himself entitled in order that such submission may be investigated at the time.

It may be the case that the submission of these notices is expressed as Condition Precedent and in the event the Contractor or Sub Contractor fails to comply with condition may result in the wavering of any entitlement.

It is therefore essential for the parties to understand their obligations and expressed provisions of the contract and as a consequence to comply with the provisions. A contract is an even handed document (or at least should be) and all parties should endeavour to comply with all provisions therein, particularly if they want to rely on provisions to establish entitlement.

Contractual entitlement

As a general rule the contract (particularly where a standard form) will contain specific provisions which may entitle the Contractor or Sub Contractor to an EoT for one or a series of events.

By way of an example under FIDIC, there are a number of different conditions:

Clause 6.4 – Late Drawings
Clause 12.2 – Adverse physical obstructions or conditions
Clause 27.1 – Discovery of fossils or antiquities
Clause 36.5 – Additional tests not provided for
Clause 40.2 – Suspension of the works
Clause 42.2 – Failure to give possession of site
Clause 44.1 (a) – Additional or extra work
Clause 44.1 (c) – Exceptionally adverse climatic conditions
Clause 44.1 (d) – any delay, impediment or prevention by the Employer
Clause 44.1 (e) – any special circumstances, other than through default by the Contractor
Clause 69.4 – Contractor’s suspension of the works

Statement of claim

As the claim is effectively in two parts, first you demonstrate entitlement (as demonstrated in “Liability for the claim event”, “Contractual compliance” and “Contractual entitlement”) and then the details of what has transpired to lead to the claim. Therefore it makes sense to again make a clear and succinct statement on what the Contractor or Sub Contractor is claiming.


This is where the claim will succeed or fail effectively as its one thing to prove a contractual entitlement it’s another to prove that you have that entitlement based on what has occurred.

This section needs to be robust and will have all the evidences that the Contractor or Sub Contractor seeks to rely upon as the documentary evidence. This documentary evidence will be made up of a number of different contract and non contract documents, which all drawn together in a single document support the assertions made in the overall claim document. These can include, but be limited to the following:

• Letters
• Site Instructions
• E-mail’s
• Method Statements
• Risk Assessments
• Progress Reports
• Record Photographs
• Minutes of Meetings
• Programme’s (Baseline and updated)
• Schedules
• Trackers
• Statements of Fact
• Expert Witness Statements

Cause & Effect

Being read and drafted together with the “Substantiation” will be the “Cause & Effect” which as the title suggests is where you demonstrate a cause; e.g. adverse weather for a prolonged period outside of the normal for that period; with the effect; which would in all likelihood be delay to works on site at the minimum and may result in works that are damaged and require to be re-done.

In order to be successful in a claim merely listing the events in chronological order should not be sufficient to demonstrate a full entitlement. The real art in putting together the claim is for the narrative to tell the person assessing the claim a story describing how the event has affected the works.

This should commence with what the planned works were and how they were affected, in particular making reference to planned sequences, durations and mythologies (Note how the list in the previous section becomes important here, the status of the works to the planned at the time of the claim event and detailing the changes that took place as a direct result of the claim event.

Delay analysis

Undertake a delay analysis which demonstrates the effect to the programme.

There are a number of internationally recognised delay analysis methods and the most appropriate method will effectively be determined by circumstances surrounding the claim event. This can include but not be limited to the following:

• Level and detail of records available
• The robustness of the Baseline Programme and effects of any periodic updates
• Available time (Particularly around contracts that time bar events after the passing of a period of time)

• Degree of accuracy

• Level of proof required under the contract.

We will review Delay Analysis Methods in greater detail later.
Of course every claim will be different and some may need very basic details under the defined headings detailed above, but likewise others can be extremely complex and may be to demonstrate more than one entitlement. Like any document it should be clear and concise to enable the person that has to make a Determination being able to do so based on the submission. If the claim submission is haphazard and difficult to follow, it could lead to the claim being rejected even though there was an entitlement.